I'm a libertarian lawyer and college professor. I blog on religion, history, constitutional law, government policy, philosophy, sexuality, and the American Founding. Everything is fair game though. Over the years, I've been involved in numerous group blogs that come and go. This blog archives almost everything I write.
Email your questions or comments to rowjonathan@aol.com

Tuesday, May 31, 2005

Your moral views may come from your understanding of human dignity; another's view may come from utilitarianism; another's may come from libertarianism; another's may come from fundamentalist Christianity. None of these bases are somehow provable; none is constitutionally superior to the others....For most, quite possibly all, of us, our moral beliefs ultimately rest on unproven and unprovable moral axioms. The Constitution doesn't consign those whose moral beliefs rest on unproven and unprovable religious axioms to a lesser citizenship, under which they may not enact their views into law, while others with the same views that rest on unproven and unprovable secular axioms are free to do so.

And who said postmodern relativism (philosophical nihilism) is no friend to religious conservatism?

A similar article by Ed Feser who objects to the claim that "you can't legislate morality" and asserts that such claim is almost always directed against social conservatives by liberals and libertarians:

For as we've seen, liberals and libertarians themselves appeal to certain moral principles in defending their favored policies. So how can they consistently criticize conservatives for doing the same? Isn't the liberal trying to "legislate morality" when he advocates redistributing wealth in the name of fairness? Isn't he thereby "imposing his moral views" on the wealthy? Aren't libertarians also "imposing their moral views" on liberals by trying to stop such redistribution? If libertarians who think that redistributive taxation amounts to theft could enact a law forbidding it, wouldn't this too amount to "legislating morality"? And if a liberal or libertarian responded by saying "Well, my moral views are the right ones!" why wouldn't this be just another instance of the same sort of dogmatic intolerance that conservatives are so often accused of?..."[W]e shouldn't impose our personal moral views on other people" sounds itself like an absolute moral imperative. So what exactly is going on here?

Also, keep this very brief point that Feser made in mind, I'm going to come back to it [it's quite important and bears more examination than Feser gives]. "Not all moral principles ought to be enforced by the power of government, but almost everything government does is based on some moral principle or other."

May law or government policy be based on faith? Given our nation's secular tradition, we would rightly protest a law prohibiting any person to eat pork merely because pork consumption is forbidden by some interpretations of the Bible. Any law based solely on sectarian religious belief should be rejected out-of-hand in a democratic society.

The objection is not that this law abridges the free exercise of religion. To the best of my knowledge, not eating pork does not violate anyone's religion. Rather, it must be rejected because it serves no legitimate public purpose and simply imposes one group's religious faith on the nation as a whole. Whether or not such a law violates the First Amendment's Establishment Clause ("Congress shall make no law respecting an establishment of religion"), it certainly undermines a fundamental precept of American democracy -- one person's freedom should not be infringed merely to satisfy another's religious faith.

Now both Feser and Volokh give good arguments against Stone's assertion, but the reason why I quoted Stone's point last was because I want to focus on his example. Volokh and Feser give us no good reason for objecting to a democratically enacted statute (in say a predominantly Muslim-American community) that would indeed outlaw the consumption of pork for "religious reasons." How would they respond if such were to happen in the real world?

I don't have an easy explanation for asserting that "my religion tells me this is wrong, therefore it should be law," or "I think this is immoral, therefore it should be outlawed" are not good political arguments. But let me try:

More often than not, either of these rationales will be trumped by overriding political concerns. If the moral or religious conviction is consistent with the overriding political principles that justify public policy, then so be it -- we have "religious" or "moral" reasons for policy X, and policy X is a legitimate public norm (for instance, laws against murder and theft). However, more often than not overriding political principles will consign certain religious or moral judgments to the private sphere of society (see my argument below).

Feser and Volokh both correctly note that 1) many legitimate laws are based on not just moral principles, but fundamental moral principles and 2) these fundamental moral issues that are also legitimate public norms are often basic religious principles as well.

For instance, laws against murder and theft are: 1) unquestionably proper civil issues; 2) also moral issues (it's not just illegal to steal and murder innocents it's also gravely wrong), and 3) also issues that are part of the basic teachings of various religions (part of The Ten Commandments, and other world religions as well).

Or take slavery. Obviously this is against the law (see the 13th Amendment). And also obviously slavery is a gravely immoral practice. Regarding slavery and religious morality, the answer is more complicated than you might think. Sure today most Jews and Christians, whether fundamentalist or not, will tell you that their faith holds that slavery violates the religion, but throughout history this was often not so, and the Bible is...well let's just say at best ambiguous on the issue, at worst, pro-slavery.

But you get the point, when we make laws against murder, theft and slavery, we are 1) legislating morality, and 2) arguably legislating what many consider to be "religious morality." But does the inquiry end there? So why isn't it then okay for a Muslim controlled legislature to outlaw the consumption of pork within their community (as Stone pointed out, no common religion can argue that they have a religious obligation to eat pork, with which the Muslim law would interfere. Hence no "Free Exercise" claim could be made). Or why would it not be okay for a Catholic controlled legislature to outlaw eating Red Meat on Fridays (again, who has a religious obligation to eat Red Meat on Fridays?).

What if a Christian controlled legislature wanted to outlaw the proselytizing of false Gods, which the Bible considers to be a grave moral issue (it demands execution for it). Well that's easy, Hindus, Muslims, Krishnas etc. have constitutional free exercise rights. This is an elementary constitutional principle. But wait? They have a "right" to violate fundamental Biblical morality. Yes. And that's a problem for those who blithely argue, "I want to legislate my moral system."

Feser doesn't adequately deal with all of those circumstances where a particular issue is both fundamental to religious morality, but also wholly inappropriate for civil legislation. He does write, "Not all moral principles ought to be enforced by the power of government...." Not exactly, in fact MOST moral principles are not and ought not be enforced by the power of government in any way whatsoever. The Free Exercise example is an easy case, but it also illustrates the rule, not the exception in the following sense: We make countless moral choices every day over which government has no proper jurisdiction and in which government does not [thank God!] involve itself.

The Free Exercise of Religion is just one of many overriding political norms that trumps the notion that "X should be legislated because my religion says it's immoral." We also have fundamental political concerns of liberty, equality, privacy, promotion of commerce, and others which invariably consign most moral judgments to the private sphere of society.

For instance, let's say Feser gets engaged to woman and for no good reason, he decides to break it off. That is fundamentally a moral issue, isn't it? Why doesn't government get involved there? Consider the Seven Deadly sins of the Bible: pride, covetousness, lust, anger, gluttony, envy, and sloth. Could you imagine attempting to legislate this morality?

Or what about lying to your parents? Or your significant other? Or what about business/commerce? Should government(s) have a "morals" council that will examine whether the plan of anyone seeking a business license has a proper moral purpose or that their business activities will foster public morality (that would go down real nice with our capitalist, market-oriented system).

So back to the pork example (or the Catholic "red meat on Friday"). Doesn't this interfere with elementary notions of "liberty" and "privacy" -- the right to feed yourself and your family whatever you'd like in the privacy of your own home? Or what about commerce? Doesn't the pork industry -- the farmers and producers -- have the right to market its product?

In a previous post I drew the distinction between what I called "public morality" (those public policy issues, which are also moral issues over which government may properly legislate, like murder, slavery, and theft) and "private morality" (those moral issues over which government has no legitimate basis legislating). I concluded that overwhelmingly most moral issues properly belong to the realm of "private morality."

So in the end, those who would argue, "you can't legislate morality" are technically wrong, but we could rightly say something similar: "You cannot legislate most moral issues" or "most moral issues are presumptively not the concern of the civil law." True, there are some moral issues that are "public" issues; but they are the exception. Most moral issues are properly consigned to the realm of "private morality."

Sunday, May 29, 2005

This post was inspired by reflecting on this passage of the Bible: Deuteronomy 22:20. The context is a man questioning his betrothed's "chastity" and what to do about it.

"But if this thing be true [that she's not a virgin] and the tokens of virginity be not found for the damsel: Then they shall bring out the damsel to the door of her father's house, and the men of her city shall stone her with stones that she die: because she hath wrought folly in Is-ra-el, to play the whore in her father's house: so shalt thou put evil away from among you."

If the concept of evil does objectively exist, what God was commanding to be done to the woman certainly qualifies as unjust, wrong, and pure evil.

When we see the Islamic world doing these very things, we rightly recoil in horror. And by the way, many of the bloodthirsty and horrific things that the Islamo-fascists do to their own people -- especially their women -- come right from the pages of the Old Testament. Indeed (and ironic) that the terrible persecution directed against Christians in Islamic nations is because, Christians by worshipping a "God" named Jesus (along with two other Gods) are committing the crime of "polytheism" and Islamic fundamentalists accurately note that the Old Testament treats polytheism as the most serious of crimes and demands the immediate execution of those who would tempt the community to worship "false gods."

Now, is there a way to defend the Bible so that we don't just throw the book out entirely because certain sections of it are brutal, barbaric and flat out immoral? Yes. And here is how I would do it:

The Bible, especially the Old Testament, was written a long, long time ago. Humans came from a "state of nature" (our evolutionary state) that looked not like Locke's "hypothetical" description of it, but rather like Hobbes's "state of war" where men warred against one another and where "might made right."

Civilization brought us out of this brutal state and the Ancient Jews, as described in the Old Testament, were taking that "first step" from this sub-barbaric evolutionary state towards civilization. And as bad as some of those Old Testament verses seem, the Ancient Jews were probably no worse and indeed probably slightly more civilized than all of the other Pagan tribes (especially the enemies of the Jews: The Amorites, the Canaanites, the Perizzites, etc.).

In terms of doing wrong, you have to know something is wrong before you can rightly be held culpable for it. When we emerged from our evolutionary state, we weren't given a handbook entitled "Civilization 101" where we were informed of everything we needed to know about 20th Century humane ethics. No rather we had to learn by experience. And it literally took thousands of years of accumulated experience for us to learn and develop the ethical system that we now have that rightly makes us shriek at the thought of taking a "betrothed" woman, having the government, at the behest of her husband, pull her pants down to examine her for evidence of "virginity" and then brutally stoning her to death if she is found not to be a virgin.

Slavery is a good example: As "self-evidently" inhumane and wrong as it seems to us now, the institution was practiced universally for thousands of years without controversy because no one realized it was wrong. The Bible certainly doesn't proscribe it. Neither does the Koran. Neither did the ethical teachings of the Ancient Greeks or any other Pagan culture. We had to "learn" that it was wrong through experience. And from my understanding of history, Western Culture in the 1600s AD first began to question the morality of slavery. (At least that's when the dismantling of the institution of slavery began.)

If a proscription against slavery were written right in the pages of the Bible as clearly as the proscription on murder, theft, idolatry, worshipping false gods, or even homosexual conduct, then the West would have banned slavery right from the start instead of the middle of the 19th Century AD (when the dismantling of the institution of slavery ended in the West.)

It's clear that Alan Dershowitz is right when he says "we can do much better than the Ten Commandments." What are we to think of a code that outlaws "coveting" but doesn't even give us a hint that slavery is wrong?

The bottom line is the Ten Commandments and the rest of what's written in the Bible are defensible if and only if put into historical context. In other words, one must read the Bible through the lens of historical relativism (and "situational ethics") and context in order to see it as a "Good Book," one which guided man on the path towards civilization.

The problem for the fundamentalists is that they reject (or at least, they claim to) historical relativism and situational ethics in general and especially as applied to their Bible. To them, EVERYTHING that is written in the Bible is absolute, inerrant, and timeless, as true now as it was when written.

But, as I have demonstrated, according to our 20th Century view of ethics -- of "human rights" that views slavery as wrong, treats women as equals, demands that government respect the basic privacy and dignity rights of its citizens -- certain things written in the Bible, especially the Old Testament, but some of the New as well are morally indefensible.

It is morally indefensible for any government to not only execute, but execute by taking stones and smashing skulls of homosexuals, recalcitrant children, those who worship false Gods (like Hindus and Hare Krishnas, perhaps even Muslims if Allah is not the God of the Hebrew Scriptures) and betrothed females who aren't virgins, and many others. And it is likewise morally indefensible to allow slavery, which the Bible clearly does.

That right there is good reason, to me, to reject the inerrancy and absolutism of Scripture. This problem is easily solved for those of us who wish to laud the Bible as a piece of literature and an important historical document by accepting that it was written by men living in brutal times before we knew better, and that it is often wrong. But the fundamentalist can't do that. And therein lies his moral paradox.

Saturday, May 28, 2005

Since I promised to show you some more pics of me, I dug up some pics at various graduations at various stages in my life.

Below is law school graduation, at Temple University, in 1999 with my two older brothers (both lawyers).

Below is college graduation from Berklee College of Music in 1995 (guess who the music celebrity is handing me my diploma).

Below is High School Graduation in 1991 (if you look carefully, you can see I have a mullet).

And finally, even though this isn't graduation related, it's me and my best friend Dave at Penn State Altoona (where he was attending at the time) in 1996 where a former TV celebrity gave a speech (guess who).

Thursday, May 26, 2005

The "Marital Bed":

Man I never knew that fundamentalist Christian married couples were allowed to have such kinky sex. It's interesting, Catholics have their "natural law" tradition that traces back to Aristotelian-Aquinas notions of "nature" and "reason" and sees "procreation" as the be all and end all of marital sex.

There are many (not all) fundamentalist Protestants who couldn't care one whit about such Aristotelian notions but rather care only about what the Bible says. Therefore, there is nothing wrong with contraception between married couples because the Bible doesn't forbid that (it does tell us to "multiply," but if a good Christian couple wants to use contraception to rationally plan how and when it will have children, so be it. Aquinas's notions of "naturalness" are not binding; Scripture is).

But anyway, it's surprising how many things apparently are allowed in "The Marital Bed" according to this site's literal interpretation of the Bible. For instance, sex toys:

If a sex toy is used, it should be as an enhancement, not the center of attention. If it brings the couple closer, and results in one or both of them enjoying sex more, that is good. If it results in either person feeling badly, that is not good.

Tying a partner up can be very arousing for both of the one tied and the one who is not tied. It can show a sense of trust, and can allow the bound person to feel free to do nothing and just receive. If bondage is mutually enjoyed and not extreme, we see no reason not to make it a part of a couple's sex life.

Wednesday, May 25, 2005

Sad to See:

Well it's sad to see him go. But somehow, I have the feeling that we won't be seeing the last of Sandefur in the blogsphere. I made my debut guest blogging on Freespace. So I'd especially like to that Sandefur for giving me that opportunity.

In the meantime, this passage from his farewell post was especially nice.

My final message is to always love your freedom, and fight for it with all you can. It is the rarest, and most precious, possession on earth. Without freedom, no other joys are meaningful; no victory is worthy; no riches are wealth; no tomorrows make a future. The right to speak and think and believe and study and work and earn and keep and buy and sell and be what you are, as you want, on your own terms, as an individual worthy to make choices, are beyond any treasures that so-called benefactors might offer you in trade. Do not let people tell you that freedom means moral chaos or poverty. This is not true. Do not let people tell you that folks in other parts of the world don’t long for freedom. This is not true. Do not let people tell you that it is all too late, and that talk of freedom is all speculation divorced from the real world. It is not true. Do not let people tell you that the Constitution is outdated, and that our lives must be governed, governed, governed, as the price for living in society. This is not true. And do not let people tell you that maturity consists of giving up your idealism, or that responsibility means giving up on your freedom, or that wisdom consists of accepting illogical arguments. These things are not true.

Well look what it did to the brain of Jeff "Skunk" Baxter, guitarist extrordinaire formerly of the Doobie Brothers.

Jeff Baxter played psychedelic music with Ultimate Spinach, jazz-rock with Steely Dan and funky pop with the Doobie Brothers. But in the last few years he has made an even bigger transition: Mr. Baxter, who goes by the nickname "Skunk," has become one of the national-security world's well-known counterterrorism experts.

A wiry man who wears a beret to many of his meetings, Mr. Baxter, who is now 56 years old, has gone from a rock career that brought him eight platinum records to a spot in the small constellation of consultants paid to help both policy makers and defense contractors better understand the way terrorists think and plan attacks.

Quote from Baxter:

"We thought turntables were for playing records until rappers began to use them as instruments, and we thought airplanes were for carrying passengers until terrorists realized they could be used as missiles," says Mr. Baxter, who sports a ponytail and handlebar mustache. "My big thing is to look at existing technologies and try to see other ways they can be used, which happens in music all the time and happens to be what terrorists are incredibly good at."

We all know what the word "Doobie" refers to. But what about Baxter's nickname, "Skunk"? Although he refuses to confirm, I think it's quite obvious.

Tuesday, May 24, 2005

Walsh isn't bad looking. But they all wore these ridiculous clothes (part of the fun of watching them from the 70s: 10 worse than the Brady Bunch) when they performed (they look more normal now). In the late 70s/early 80s Walsh had this "70s gym teacher" (or maybe it was "70s gay porn star") theme going on. Although I can't find it, there is one picture of Walsh that I have seen circa 1979 where he actually performs on stage wearing a weight-lifting belt.

Anyway, I thought some people might get a kick out of these pictures.

If you are more interested in seeing some live performances: Here are a few songs of Kansas at their best [Journey from Mariabronn and The Pinnacle]. Songs like these, in my opinion, put them on an equal level with Yes, Genesis, Rush and ELP. If you don't like the "art rock" genre, then you are not likely to dig these videos (but you might enjoy watching them for the bad outfits).

Kansas weren't as virtuostic as ELP or even Yes (as Kerry Livgren put it: "Nobody's a virtuoso, but nobody's a slouch). They probably sound more like Genesis. But as these videos show, there is much more to the band than Carry On Wayward Son and Dust in the Wind (but if you like those two songs, you can see videos for them here and here).

Steve Walsh's voice is absolutely haunting in those two videos, gives me the chills every time I hear him. It's a shame that he's lost a great deal of his tone. He had, up until recently a terrible drug and alcohol problem (used to perform wasted all the time), and literally screamed a lot of the tone out of his voice (compare the way he sounded in those 70s videos to how he sounded in the early 90s in this cover of John Lennon's "So this is Christmas"). The good news is, he has rehabilated his voice and sounds better than he did in the early 90s. The bad news is, he doesn't sound like he did in the 70s and never will. Listenhere to see what he sounds like now.

Interestingly, Steve Walsh actually joined Yes in the 1980s when Jon Anderson left (his voice had already changed). It didn't work out. Although he didn't give a reason why, I speculate that the members of Yes expected Walsh to sound like he did in the 1970s, and when he didn't they didn't want him to replace Anderson who has a really high and smooth voice.

Monday, May 23, 2005

Career Announcement:

After 6-years of teaching as an adjunct (and 4-years making a living adjuncting full time) I have secured a full-time tenure track position. Starting next fall I will be an Assistant Professor (well technically, currently I am an Assistant Professor/Senior Adjunct) at Mercer County Community College's Business and Technology Division.

I turn 32 next month and am grateful that I have this position at my relatively young age (relatively young for a full time position).

For the first two years of adjuncting, I was also pursing my LL.M. (advanced law degree) in Transnational Law at Temple University. But over the past 4-years I've been just teaching and practicing law, although my practice is deminimus: My law practice is pretty much me and my computer.

Securing any kind of full-time tenure track (or even non-tenure track) teaching position is very hard. Larry Solum and others have informed us at great length what needs to be done in order to get a Law School teaching position. And given that I 1) didn't graduate from an Ivy League Law School, 2) don't have a significant record of publications, and 3) don't have work experience at a prestigious Law Firm or Judicial Clerkship, it would be a waste of time for me at this point in my life to even consider that.

Most of us who would like to break into teaching as a career, alas, aren't qualified to teach in a Law School. But there are other options/possibilities for JDs who would like to teach.

First off, there are 4-year colleges and graduate schools. Just about every business school has one full time JD in their department who is responsible for teaching and coordinating "Business Law" or "Legal Environment" courses. Many schools also have paralegal programs, again, most often in business programs (sometimes in other departments, though). Often there will be one full-time JD who is responsible for both the paralegal program and the Business Law courses. Some larger programs have more than one full time JD. Some schools, for instance in my area -- Temple and Drexel -- have their own legal departments with a number of full time JD faculty -- again usually part of the Business School -- where degrees are offered in "pre-law," "legal studies in business" or something along those lines.

In addition (you can tell I have most experience with teaching opportunities for JDs in Business Schools), there are full-time JD positions in the Criminology and Political Science departments at various schools.

Now, many 4-year colleges and graduate schools -- perhaps most of them -- are "research" and "publishing" oriented. That is, they might not be so demanding in looking for an Ivy League JD or prestigious Clerkship, but they do expect you to publish ("publish or perish" as they say).

There are other 4-year colleges, and, (with rare exception) almost all Community Colleges, that are "teaching" colleges, where they don't expect you to publish at all (some of us do publish -- having a record of publication certainly won't hurt you and may be viewed as a "plus" factor; but it certainly isn't a prerequisite for getting or maintain a full time job).

A full time teaching load at a community college is 15 credits per semester. At Law Schools it's 6-credits. That should tell you all you need to know about where their respective priorities lie.

Now, if you are a JD and you want to secure a full time job in academia, say at a community college, there is still much more to the story. First of all, because a JD is a "terminal degree" (in other words, it's equivalent to a Ph'D, even though it's not as hard to secure; after all JD stands for "Juris Doctor"; some JDs insist that they be called "Dr." even though I don't), and because there are a lot of lawyers who don't really like their jobs, and because you don't need the fancy Ivy League degrees and clerkships to get a job as a community college professor, there is tremendous competition for these positions. Tremendous. Having significant experience teaching as an adjunct is a must.

But there is even more. As I said, often these positions involve running or helping to run a paralegal program (not an easy thing to do). So if you applied for such a position, not only would you need experience teaching as an adjunct, but also experience being involved in a paralegal program (for instance, many adjuncts teach paralegal courses and in other ways help the paralegal program at a particular college).

As I said, there are some colleges where one JD will be hired as the "Business Law" or "Legal Environment" guy only (in fact, I've interviewed for such positions), without needing to be involved in the paralegal program in any way (or often, one JD will coordinate the Paralegal Program, and the "Business Law" guy will be expected to assist). Those "Business Law" only positions are few and far between.

What's more likely -- and this is essentially how I got my job -- to teach in a Business Program, if you can "wear many hats" and wear your "JD/Lawyer" hat as one of a few different hats, this will distinguish you from all of those JDs wanting to break into teaching. I don't just have a "JD," but also an MBA and an LL.M. (advanced law degree) in International Law. I don't just teach Business Law and Legal Environment Courses....Well let me tell you the courses I taught last semester.

For the last Fall and Spring Semesters I taught 21 credits each semester (many of them were online...more on that in a bit).

Here are the Courses I taught last Spring 2005 semester (at three different colleges -- each course I taught was a different "preparation"):

Business Law IBusiness Law IIInternational BusinessBasic EconomicsLegal Environment of BusinessPrinciples of ManagementLegal Issues Impacting the Educator

So if you want to break into teaching at a "teaching" college, it would be extremely helpful if you had at least one other graduate degree. More than one graduate degree would be even better. If you had not just a JD, but also say, an MA in Accounting and an MA in Economics (or an MBA with lots of Economics or Accounting Courses), that would greatly increase your chances of securing such a position.

Also, teach online courses. Community Colleges/Teaching Colleges have embraced online education. Last semester 12 of my 21 credits were online. There are two programs you need to learn: WebCt and Blackboard. Learn them both.

Also embrace technology in the classroom. Know how to use Powerpoint in your course lectures. Many classes are wired. And I often access sites on the Internet (played through a projector) to assist in learning.

Most importantly: Get started adjuncting. Believe it or not, as hard as it is to secure a full-time position, it's not so hard to get adjunct work. Part of that might be because adjunct teaching tends to pay so little. If you show up for work on time every time, do a "good job," comply with their administrative procedures (for instance, turn your grades in on time and all that) you will likely be called back.

If you want to break into adjunct teaching, make a "C.V." (Curriculum Vita -- a fancy academic term for "resume") get a list of all of the colleges in the geographic radius in which you would like to teach, figure out who the contact person is (the department head or course coordinator of whatever course(s) you'd like to teach) and send your C.V. with a letter of interest to them. The worst thing that can happen is that they ignore you.

Once you get the position, however, you will see how much these colleges (over)rely on adjuncts to do the work and also how hard it is to make the "move" from adjunct to full time (unless of course, you luck out by being at the right place at the right time). Often times, literally, you have to wait until one of the full timers retire before they can open up a new position. At one college where I taught, there were 2-full JDs, both getting on in years and both in those positions for a long, long time (decades!!), and about 8 JD adjuncts, half of us desiring a full-time teaching position; we would certainly love one at that college, a truly great Community College. But at that college, they will not open a new "Law" position until one of the 2-full time tenured guys retire.

So have I inspired you or scared you off from college teaching as a career?

I'm glad my last post on Feser and the Natural Law generated such interest. Ed Brayton linked to it and very good comments were made on both my and Brayton's posts. Feser left a comment on Brayton's post and some of our commenters have left comments on the original thread at Right Reason. In addition Feser just posted a second very detailed continuation on this theme.

In particular, read what Dr. David Mazel had to say. I don't agree with Mazel's point of view in its entirety, but he's real good nonetheless. Here is what he said on my blog:

Actually, Feser's articulation of the natural law theory is NOT coherent. It's arrogant theistic crap that falls apart even if one accepts its premises. Its apparent coherence is largely rhetorical, not logical. Consider the analogy with the screwdriver: it supports Feder's argument only if in fact a thing's "purpose" is always and necessarily singular. A screwdriver may be designed to serve a single end, but that hardly means all tools are so designed. The internal combustion engine is used mainly to power automobiles, but it was hardly intended only to do so; it is also pretty useful for powering lawnmowers, generators, and backhoes. And if I use an engine to power a backhoe I cannot for that time also use it to power a forklift.

Feder's claim that nonprocreative sex is "contrary to" the intended use of the sexual organs--in the sense that secondary uses preclude some primary use--is obviously and empirically false. It's perfectly possible for someone to have lots of nonprocreative sex AND to have as many children as the next couple. It only takes an occasional act of procreative sex to do the trick. And consider the case of a husband and wife who continue to have sex after the wife is pregnant--clearly no additional pregnancy can result from such sex. Does the Church consider such sex sinful? If it does, then why did God make us so that we continue to get horny in such circumstances? Feser might argue, somewhat more sensibly, that it's wrong to have sex without EVER having children, or without having LOTS of children--but that is not the same as making the more puritanical argument against non-procreative sex per se. It is an argument against failing to produce children, which is not the same as an argument against non-procreative sex.

It's easy to find examples where we use an organ for purposes contrary to its "intended" use--in the sense that such uses preclude a primary use--yet without incurring any moral fault. When children close their eyes during a game of hide and seek, they cannot see--they contravene the "intended" use of their eyes--yet they are hardly being sinful in doing so. Instead, they are momentarily contravening the use of those organs in order to have a little fun. If that's not wrong--and I would assume Feser is not ready to declare the game of hide and seek to be sinful--then why is it so wrong when a couple plays a grown-up game that involves temporarily using its sex organs for pleasure rather than procreation? (I can play the analogy game too.)

Also, how narrowly do we define "purpose"? If we follow the biblical story of Onan (one of the most persistently and egregiously misread stories in all of scripture), we might conclude that his "sin," for which he supposedly paid with his life, was not coitus interruptus per se (and certainly not masturbation), but more narrowly his failure to produce an heir for his dead brother. If he had produced such an heir and only afterward engaged in coitus interruptus, would it have been a sin? Who knows? Where the scripture itself is silent, as in this case, ideology is sure to chime in....

Of course, the legal and social contexts within which the Onan story once made sense no longer obtain. Could it not be that something's "intended purpose" changes with changes in the context of its use? If you buy the counterargument that religion is committed to "timeless, unchanging values," I've got a bridge to sell you. Remember that the Church once used the same "natural law" crap to argue against charging interest for loans.

As for Max Goss, it is indeed possible that the sex organs were intended to have more than one use. He is still unnecessarily puritanical, however, for he refuses to acknowledge the possibility that his God might have intended for humans to experience pleasure more generally as a good in its own right. Was that in fact God's intention? Again, who can but God himself? It's really difficult in some cases to ascertain just what something's intended use might be--unless, of course, you're as comfortable as our more arrogant theists are at reading the Mind of God.

And here is one of his comments from Brayton's blog:

In his comment above, Feser writes that "The point of the of the post was to clear up some common misunderstandings of what traditional natural law theory says." Yet in his original post at Right Reason he said that his aim was ALSO to show that his version of natural law "is at least a coherent theory."

Yet it is clearly NOT a coherent theory, at least in the sense that accepting Feser's stated premises leads inevitably to his stated conclusions. One can very easily accept his premises yet come to conclusions that are just as plausible yet diametrically opposed.

Let us accept Feser's premises about form, teleology, etc. Let us also accept that something can have more than one intended purpose--somethin Feser admits when he says the penis is designed for both procreation and urination. (I should point out here that despite this admission Feser's language suggests that he doesn't really believe it. He consistently uses singular pronouns and articles in reference to purpose, as if things typically have a SINGLE purpose--an utterly unwarranted assumption, and one that deeply colors his beliefs.)

Let us assume in particular the idea that real world objects, whether squirrels or human beings, are more or less imperfect instantiations of platonic Forms. Let us assume further that, for human beings at least, morality consists primarily of acting in ways that further, or at least do not frustrate, the ends implicit in these Forms.

But wait. Is there really just a single "human" Form? Or are there in fact two human ideals, one male and one female? A fair reading of a broad swath of conservative thinking would suggest the latter: there is Man, and there is Woman, and a man's moral duty is to strive to realize the formal essence of Man, and a woman's moral duty is to strive to realize the formal essence of Woman. (Of course, I don't believe this crap myself--I'm just trying to work with Feser's natural law premises.)

But again, wait. If there is not one common Human, but rather two forms of humans, why not more? Who's to say that we should not in fact be speaking, not of Man and Woman, but of Heterosexual Man and Heterosexual Woman, in order to distinguish them from those other forms, Gay Man and Lesbian?

Perhaps the essence of Gay Man is different from that of Heterosexual Man, and the essence of Lesbian different from that of Heterosexual Woman, just as the essence of Man differs from that of Woman. If so--and Feser has given us absolutely no reason why it might not be so--then it stands to reason that Gay Man and Lesbian--as well as those naughty organs, Gay Penis and Lesbian Clitoris--have been designed by their Creator toward rather different ends than Heterosexual Man and Heterosexual Woman. Who can say? Perhaps Feser can read the Mind of God, or perhaps the Pope can, but I cannot, and anyway I'm trying to proceed on the basis of reason rather than revelation.

If Gay Man and Lesbian are Forms of their own, then natural law tells us that the moral thing for gays and lesbians to do is to strive to realize their essence qua Gays and Lesbians. The immoral thing for them to do would be to frustrate that realization. BTW, that applies to straights as well--including, I will assume, Feser. It is immoral for Feser or anyone else to deliberately frustrate the ability of gays and lesbians to realize their essence as Gays and Lesbians.

I don't necessarily expect to see Feser marching in a gay pride parade, but it would certainly be immoral for him to actively frustrate gay and lesbian efforts to realize their full potential as gays and lesbians--say, by opposing gay marriage. Feser might not like this conclusion, but hey--it's not my fault his theory is so incoherent.

At this point Feser might interject that the homosexual is not a Form of its own but rather a defective version of Man. He's free to do that, but if he does so he is not using natural law to prove the defectiveness of the homosexual; rather he is building that defectiveness into his theory as one of its unstated premises. The inferiority of the homosexual would not then be based on reason, and certainly not "right" reason; it would be plain bias.

My purpose thus far has been to show that one can start from Feser's premises and reach conclusions just as plausible as, yet diametrically opposed to, his own. In that sense he is wrong to claim that his theory is consistent.

There is also, of course, the question of the truth of natural law's premises. Feser illustrates one of those premises with the example of a squirrel. There is such a thing, we are told, as an ideal Squirrel, and the squirrelness of every actual squirrel is something it has "by virtue of participating in its form." Is this idea consistent with evolutionary fact? It's hard to see how it could be. Plato and Aquinas both adhered to the idea of Forms as timeless essences, which is pretty hard to square with the evolutionary fact that "squirrelness" is not eternal but historically contingent, in fact accidental. Are there a multiplicity of Forms out there that were instantiated by the squirrel's evolutionary forebears, but are now "empty," as it were? Are there a multiplicity of other Forms biding their time out there in the ether, waiting on the vanishingly slim chance that they might find themselves instantiated by one of the squirrel's evolutionary descendants, whatever it might be? I doubt that even Aristotle could reconcile natural law with the fact of evolution. Given his empirical turn of mind, it is far more likely he'd change his mind and line up with Darwin.

In summary, natural law is founded on false premises and is internally incoherent to boot. Other than that it's not a bad theory.

Sunday, May 22, 2005

Feser on the Natural Law:

A good post -- with which I strongly disagree -- by Ed Feser on the natural law. Feser defends the traditionalist Catholic Thomistic view of natural law (in modern understandable terms). A couple of points need to be brought out.

1) Simply calling something "unnatural" (or abnormal) to try to score points against it -- whether it be homosexual acts, pedophilia or interracial marriage or whatever -- is on its face meaningless because there are many dictionary definitions of those terms and most (perhaps all) have absolutely nothing to do with the propriety of the actions or conditions involved. For instance, being left-handed or having an IQ over 150 is "abnormal" according to a commonly accepted understanding of that term. (For instance: "I'm getting an abnormally high number of hits on my website today.") And anything man made, clothes even, or anything that doesn't naturally exist in nature, is "unnatural" according to a commonly understood usage of the term "natural." (For instance: "Those plants were genetically engineered. That's unnatural.")

2) Therefore if we are to use the term "natural" or "unnatural" to mean something in a morally significant or "ought" sense, then it must be attached to a specific, coherent, complete and defensible general *theory* of "natural ends" whereby we can examine all sorts of things -- activities and even traits -- and see how they fit within the rubric of the theory. Otherwise calling something "unnatural" or "abnormal" is an empty rhetorical flourish that has no more meaning than statements such as "left-handedness is abnormal" or "clothes are unnatural." And Feser does a credible job making his case, even though I like most people (even most conservative Christians as I will argue) reject it as self-evidently ridiculous and even harmful as applied to everyday reality.

The most interesting part of Feser's long post (of course) is where he applies this theory to sex:

Since it’s the natural law theory example that critics of the theory always get the most worked up over, let’s look at sex. One way to understand the traditional natural law view of the matter is this. If you consider the sexual drives that human beings have, then it is blindingly obvious that if those drives have any natural purpose at all – if they were, say, designed with a certain end in view – then that purpose is to get people to use their sexual organs. And if you consider the sexual organs themselves, then it is also blindingly obvious that if they were designed with any purpose in mind, then that purpose is procreation. More specifically, the purpose of a penis – again, if you assume that it was indeed designed with a purpose in mind – is quite obviously to deposit semen into a vagina (and also, of course, to urinate). That’s what it’s for, if indeed it is for anything, and whether or not it can be used for other purposes. You can use a corkscrew for all sorts of things – cleaning your fingernails, say – and you might for some reason even have a compulsion to use it only to clean your fingernails. The fact remains that what a corkscrew is for is opening bottles. And the purpose of sexual organs, if they have one, isn’t any more mysterious than that of corkscrews.

And:

We can note further that given the way human beings are constructed – no built-in plugs or sheathes, no ejaculatory on/off switch etc. – it is very difficult to use a penis in a way that accords with its apparent natural purpose (i.e. depositing semen into a vagina) without also having children, and lots of them. The Pill just doesn’t grow on trees, nor is a supply naturally issued with every penis or vagina at birth. So, it follows that if sexual drives and organs were designed for a certain purpose, then that purpose was pretty clearly not just occasional procreation, but fairly steady procreation. Whoever designed them clearly wanted people to have lots of sexual intercourse, and to have it precisely so that they’d have lots of children.

And finally:

It must also be emphasized that, contrary to another common misunderstanding, “unnatural” in the context of the view I’m describing does not mean “using something other than for its natural purpose.” It means “using it in a manner contrary to its natural purpose.” To borrow an example from Michael Levin, there is nothing unnatural about merely tapping out a little song on your teeth, even if that’s not what teeth are for. But there is something unnatural about painting little pictures on your teeth and then refusing ever to eat again lest the pictures be rubbed off, or pulling them out so as to make a necklace out of them. The former sort of act does not frustrate the natural end of teeth, but the latter acts do. And part of the idea in the traditional natural law understanding of the sexual act is that ejaculating into a Kleenex, or a condom, or into any bodily orifice other than a vagina, doesn’t just involve using an organ other than for its natural purpose (which is not necessarily “unnatural”) but that it uses it in a manner contrary to its natural purpose. For the “aim” or point of arousal and ejaculation, if they have an aim or point at all, is to get semen into a vagina, and the acts just described frustrate that aim.

So there you go. This theory of "natural sex" views procreation as the ultimate teleology behind sex (it's kind of hard to argue with while examining the design and functions of our sexual biology). This theory not only (obviously) views homosexual sex as "unnatural," but also equally heterosexual oral sex (and anal sex too -- practiced by many heterosexuals, but not nearly as widely practiced as oral), all acts of contraception and even masturbation. Therefore a good married Christian couple having contracepted sex is doing something every bit as "unnatural" as what homosexuals do. A teenage male masturbating -- every bit as "unnatural" as homosexuality.

You see what I mean when I write that it's not just me but the overwhelming majority of folks, even most red-state Christian conservatives, will reject this theory as unrealistic and untenable.

But this is important to note: The theory as articulated by Feser and those before him is coherent: You accept the entire thing or reject the entire thing. You cannot, in an intellectually honest and coherent way, (and as I'm sure many would wish to do) attempt to modify it to "fit" your agenda; you cannot, for instance, as I've seen done, attempt to argue that married couples having contracepted sex, or oral sex, or masturbation is "natural" on the one hand, but homosexuality "unnatural" on the other. Nope: Doing so is trying to have your cake and eat it too. When attempting to come forth with a natural teleology of sex in an "ought" sex, all roads lead to procreation. Therefore any act that purposefully frustrates the natural procreative aspect of sex is "unnatural," period.

Protestant Evangelical Francis Beckwith (who appears to question the notion that a married couple having contracepted sex is "unnatural") in the comment section, attempts to have his cake and eat it too:

But let me raise a question concerning the natural purpose of sex organs. Could not someone say that they have two intrinsic purposes--one flesh communion and procreation? Thus, contraception, in fact, enhances the intrinsic purpose of one-flesh communion by allowing married couples to engage in conjugal acts that nurture intimacy and shared devotion. Surely, the procreative function is stymied, but it is stymied for the sake of the organs' other goods. So, perhaps, we can think of justifying contraception--along natural law lines--on the ground of the principle of double-effect: there are both good and bad results, but the good outweighs the bad and the intent of the actors is to will the good.

To which, Max Goss, editor of the site, responds:

Frank, I know you addressed your question to Ed -- and I, too, would like to hear his answer -- but let me take a stab at it (also off the top of my head). I see three problems with your suggestion.

1. It would justify sodomy.

2. It is far from clear that the good of sexual intimacy outweighs the bad of preventing the conception of a child.

3. I'm not sure the intimacy of "one flesh communion" can be made sense of apart from the possibility of procreation.

As I said, I reject the entire theory as applying in an "ought" sense. Yes, the natural biological design for our sexual organs is procreation. But it doesn't follow that it is therefore bad to separate sex from procreation. Pleasure in itself, bonding, forming meaningful romantic relationships absolutely cut-off from reproduction and child-rearing is good for human flourishing.

Feser attempts to justify why infertile couple sex is okay -- fits into this theory. Often it is assumed we are referring to young couples who ought to be fertile but by biological defect aren't (and you know "miracles happen"). But arguably this is not most infertile couples. Most infertile couples are so not by defect but rather by biological design. I am of course referring to sex where one party is a post-menopausal woman. (Is God or "Nature" telling us that women past menopause ought not have sex, that to do so would be "unnatural"?)

Marriages of couples like Bob & Liddy Dole, John & Teresa Kerry, Prince Charles and Camilla Bowles -- these marriages have as little to do with "procreation" or "child rearing" as a homosexual marriage. And no, a "miracle" will not happen in a post-menopausal marriage. There is as little chance, again, not by defect but by natural design, of Bob & Liddy Dole's marriage producing a child as with a homosexual couple.

Friday, May 20, 2005

One semester over, a new one begins:

Now that my spring semester -- where I taught 21-credits at three different schools -- is over, I have more time to try to make my blog look nicer. For instance, I just figured out how to link to photos. The summer semester begins on May 23; I'm only teaching 9-credits this summer.

In a bit look for a big career announcement!

Here is my pic from Yahoo. I really should have more pics of myself online.

Perez is, in my opinion, the greatest comic book artist ever. I love to stare at his work. He also draws in a style that I prefer. No comic book art is completely anatomical-proportional, nor is it supposed to be, but Perez draws in a style that is both highly detailed, almost like an engraving and anatomical-realistic (as opposed to abstract and cartoony).

Perez is 50-years-old and I hope that he will be around for a long time to come. However, what's nice is we have Phil Jimenez whose style is strikingly similar to Perez's (okay, score a point against PJ for originality), but unlike a lot of "knock off" artists, Jimenez is a first rate clone, sort of the way that Stevie Ray Vaughn could nail Hendrix to a "T" (whereas few if any guitar players could do that). And again, like the Hendrix to Vaughn comparison, Jimenez isn't an exact clone; he does have his own nuanced style even though it looks strikingly like Perez's. See if you can tell the difference.

Wednesday, May 18, 2005

Two of my odd interests converge:

Anyone who reads my blog regularly knows that two of my obscure interests include Allan Bloom and his book The Closing of the American Mind and Kansas, the 70s American Progressive Rock band best known for a few Album Oriented Rock hits.

What could bring these two things together? Well, Kerry Livgren, guitarist and keyboardist, but more importantly, the writing genius behind the band, is an intellectual of sorts and became a born-again Christian. Like a lot of evangelicals, politically, he is quite conservative. And like of like of conservative intellectuals in the 80s, he bought and read The Closing of the American Mind and actually quotes from that book in his own autobiography, Seeds of Change (no link, b/c it's out of print), which includes a section on his philosophy of music.

In Closing, Bloom mercilessly and quite amusingly criticizes rock music. He especially has it in for Mick Jagger whom he regards as the epitome of everything that is wrong with pop culture (the book was written in the mid-80s; he didn't live long enough to see the likes of Eminem et al.).

Here is some of Livgren on Bloom and music.

It must be a symptom of our shallow throw-away culture. Things are no longer built to last. Everything, not just music, seems destined for a transitory life, as if designed only for maximum profit, soon to be replaced by the "next big thing." It is as if planned obsolescence has invaded the realm of human expression. Longevity is only relevant as it relates to commercial viability. Quality or creativity seem not, in and of themselves, to be sufficient reasons to justify the existence of a piece of music. They have been eclipsed by something called "image," and marketability, now a necessity for the artist (if "artist" is the appropriate word).

The motivation behind much of the music being produced today is, to my mind, somewhat less than pure. The artist who is trying to be totally original and creative has more than an uphill battle on his hands. There are the necessary (?) legal entanglements to contend with. The artist must not only attempt to convince a record company to distribute and promote his or her music, but is also constricted by the ever-narrowing parameters of radio formatting. If you don't fit the mold, you're out in the cold. Creative or not, if one steps outside the boundaries of one of these commercial formats, it can be the kiss of death. One could argue that this is nothing new and has always been the case. Audiences supposedly rioted when they first heard Stravinskys' Rite of Spring because it sounded so unlike anything they had ever heard. People seem to prefer to be mindlessly entertained than to be challenged. But even if that has always been true, I maintain that our artistic environment today is getting worse and not better. There is no atmosphere today which can cultivate a Stravinsky. People are obsessed with music at an almost unprecedented level, but the quality of what they are obsessed with is, in my opinion, in a general decline.

Allan Bloom spoke at length (and quite eloquently) on this point in his book, The Closing of the American Mind. Commenting on our culture's obsession with music, he writes:

"It is available twenty-four hours a day, everywhere. There is the stereo in the home, in the car; there are concerts; there are music videos, with special channels exclusively devoted to them, on the air nonstop; there are the Walkmans so that no place--not public transportation, not the library--prevents students from communing with the Muse . . . ."

This is profound and true. Music is all around us. But the disturbing irony is that so many can be obsessed with so little. One doesn't often hear Bach, Duke Ellington, or Aaron Copland blasting out of a boom box. Don't misunderstand me; I know it's beginning to sound as if I don't like rock or any kind of modern music, or that I think we should remain in the past. That's ridiculous--I grew up on rock and roll, and for most of my life that's what I have written and played. My lamentations are for what I think is a lack of real creativity and the absence of an atmosphere that would encourage and reward it. Incidentally, I am not saying this from the standpoint of an artist who believes he is above that criticism. I constantly struggle to escape the ordinary in my own work, and only occasionally succeed.

Over the years I have accumulated a rather large collection of recordings which covers the whole spectrum of musical styles. Lately I have found that there is rarely time to sit down and simply listen to music, but in one of those rare moments, I pulled a record off the shelf that I have not listened to for probably ten years. It was an early album by a little known British group, Gentle Giant. I happened to notice the liner notes on the album which read:

"It is our goal to expand the frontiers of contemporary popular music at the risk of being very unpopular. We have recorded each composition with the one thought--that it should be unique, adventurous and fascinating. It has taken every shred of our combined musical and technical knowledge to achieve this."

I think they fulfilled their prophecy of their own obscurity, but what a credo! They stated most succinctly the exact attitude which I think is missing from so much of today's contemporary music. There is no virtue in intentionally seeking to be unpopular, nor does commercial success automatically mean that a piece of music was conceived for that purpose. The best possible scenario is one in which the highest creative endeavors are accessible to the broadest possible audience.

Bloom makes a point in his book with which I completely disagree. He maintains that the musical soil is rich, and that "There is no dearth of the new and the startling." To the contrary, I find a tremendous dearth of the new, although I grant that some things I hear are indeed startling. I would have to take the position of Ecclesiastes--that there is nothing new under the sun. Virtually everything on the airwaves is so completely formularized that it sounds like it came off an assembly line. I don't really think that there is a total absence of creative musicians on the face of the earth. They surely exist in garages and basements, and might be heard on the most obscure private record labels, but obscurity is the key word here.

Ironically, there are some real virtuoso players out there, but the confines of the styles in which they are trapped can make them stupefyingly boring. Guitarists are particularly guilty of saturating the market with their machine gun arpeggios and ever more flamboyant and postured chromatic explosions. How much more impressed are we supposed to get? The whole genre seems to be designed to draw attention to the player rather than the music.

Even the college radio stations with their "alternative music" suffer from a dreadful sameness. Most of the groups I hear on these stations seem to believe that providing an alternative consists of either imitating the bands of the sixties or being as cacophonous and obnoxious as possible.

There was indeed, an explosion of creativity in the sixties and early seventies upon which we are still coasting. Many of the popular musicians of that decade literally defined how some instruments are played thirty years later. There is not a contemporary rock guitarist, for example, who does not owe a huge debt to Hendrix, Clapton, and a few others.

During that brief period, scores of new bands emerged, almost all of which had a distinctively individual and identifiable style. Musicians were doing many things that had never been done before. It was a very open and creative decade. We are now in an imitative period. I am amazed at the apparently unending number of heavy metal groups, for example, that are strapped with such rigid parameters in both their music and their appearance. Where are the individuals?

One of the things that frightens me most about saying things like this is that I sound just like our dads sounded when we were teenagers! Growing up in the sixties, most of us heard our parents expound on the unequaled greatness of Benny Goodman or Glenn Miller, and how this "modern" music sounded like noise, had no melody, and would not stand the test of time. The generational boundaries were clear then, but interestingly, they seem to be getting less distinct today.

I have seen many families with teenagers in which both the parents and kids were listening to the same groups. In some cases, the kids were reaching farther back than the parents were. That rarely would have been the case in the sixties or even the seventies. I never would have bought a Count Basie or Frankie Carle album when I was sixteen (although I appreciate them now, and I'm starting to really dig Glenn Miller).

As a member of a band that reached its peak of popularity in the late seventies and early eighties, I find it gratifying, but also peculiar to be receiving a significant amount of fan mail from people 25 years younger than me. On the most recent Kansas tour that I was on, our audiences ranged from early teens to late middle age. Something has certainly changed.

[H]omosexual men are at least 4-6x more likely to molest children than heterosexual men. Because nearly all sexual abuse of children is done by men, men of all orientations are almost twice as likely as women to sexually abuse children. Not surprisingly, our society (although not our laws) operate on prejudicial assumptions about men, and even more so, about homosexual men.

Is this unfair to homosexual men, most of whom are not going to molest children? Sure. Is this unfair to straight men, most of whom are not going to molest children? Sure. But men are substantially more likely to be molesters, and homosexual men are even more substantially likely to be molesters. The risks to children are very high--and some hurt feelings or even limited vocational and avocational opportunities (you can't be a Scoutmaster) are a small price to pay.

While it's true that men are more violent than women, more likely to commit crimes, and yes more likely to molest children or rape other adults than women, it has not been established that homosexual men are more likely to molest children than heterosexual men.

Cramer basis his statistic on the fact that 20% of molestations are same-sex (men on boy) in nature (I've heard up to 1/3). Gay men are about 4-5% of the male population (lesbian women are about 2% of the female population; gays altogether are about 3-4% of the overall population). 4-5% of the male population committing 20% of the molestations, hence his disproportionate number. The problem is that 4-5% of the population who identify as homosexual do so because they have a full and primary or exclusive attraction to adult members of the same sex. Therefore if the 20% of the same-sex molestations were committed almost exclusively by the population who identify as homosexual, the 4-6x figure would be accurate. But the problem is, they are not. This isn't to say that no self-identified gay man has ever molested someone underaged. It is to say however, that some unknown but large -- perhaps the overwhelming majority -- of molesters have no attraction to adult members of the same sex and do not identify as gay. Therefore, when it comes to those statistics that demonstrate that gays are around 3-4% of the society, those same-sex molesters are not putting themselves in that box. Therefore using the "gays are 3-4% of the population" as a baseline is an error, and turns the 4-6x figure into a garbage statistic.

We can come forth with countless examples. Jake Goldenflame, because he is rehabilitated and goes on talk shows, is probably the most commonly known and notorious pedophile. He molested tons of children of both sexes including his own daughter. He was married, never identified as gay and never demonstrated any attraction to adult members of the same-sex. And, as I understand, this is typical for a pedophile. In short lumping him in with the gay community because he molested little boys is downright disingenuous.

As far as I understand, what distinguishes true pedophiles is that they are fixed on the age, not necessarily the gender of the actor, although they may have a gender preference. Hence we see a lot of pedophiles who, like Goldenflame, molest both sexes. And given that pedophiles are focused on age rather than gender and given that little boys are 49% of the child population, we shouldn't expect to see only 4-5% of the molestations to be same-sex in nature.

Now it could be argued that because he molested both boys and girls that he is *some* kind of bisexual, hence throw him into the "Gay or Bi" box. But then again, this all depends of who is *some* kind of bisexual and how big is that box.

As I pointed out, those who self-indentify as gay and join the gay community are probably no more than 3-4% of society. But, the size of the "gay or bi" box can be seen as much larger depending on how we define it (just as the size of the "black or mixed race" box changes depending on how we define it; who do we put in and at what point do we draw the line? Bigots of the past drew the line at one drop of black blood. In that case anyone with Hispanic, Arab, or Southern European blood would probably be put in the "black or mixed race" box, hence making it much larger).

The gay/bi community is made up of those who have a exclusive or primary homosexual orientation, and also those with a perfectly even and full bisexual orientation (in short, those who are from 3-6 on the Kinsey scale). And while perfect bisexuals are relatively rare, almost unheard of for males, a huge percentage of both the "gay" and the "straight" population have *some* degree of bisexuality.

While I am aware that a lot of straights have a professed and probably real revulsion to all things homosexual (making them "exclusively heterosexual" in all ways), what people like Cramer fail to appreciate is that some huge percentage -- probably not a majority but a very large percentage nonetheless -- of self-indentified heterosexuals do not have a revulsion to all things homosexual and have the ability to enjoy certain kinds of homosexual acts and have experimented with such acts at some point in their lives (if we are talking about a heterosexual man, it's almost certain to be with some smaller, younger, or more feminine male doing things to him that a women would otherwise do; use your imagination).

What percentage of the population are we talking about? I really can't say because people aren't up front about this. I call this the "masturbation affect." We all know that men of virile years who don't get regular sex, masturbate universally to satisfy their need for release. Yet ask many men about this in surveys and they will deny it.

If that many men are willing to lie about masturbation, how many straight guys -- guys who are fully attracted to women in a way they could never be to men and who have no desire to be understood as "gay or bisexual" -- would admit to same-sex experimentation? And this is especially true given that any admission to same-sex behavior gives rise to an inference of a gay or bi identity.

I think Aaron McKinney of Matthew Shepard infamy is a good illustration. Recently the news broke that McKinney had some same-sex experiences. He is man who 1) never joined the gay community, 2) has a girlfriend [presumably one of many in his life] and evidences a primary and full attraction to women, and 3) (somewhat less important) is a masculine brute who in no way "fits" the gay stereotype. Immediately people started "labeling" him as a "bisexual." But that's not how he understands himself. When asked about these experiences in a jail-room interview he flatly denied them.

People commit situational homosexuality for a variety of reasons. I think of all those women who go on the Howard Stern show and fool around with other women or how common it is among women in certain circles -- it's almost universal among the women in prostitution and pornography, and very common among erotic dancers. But these women aren't "real lesbians" and they aren't "real bisexuals" either because most of them don't have the capacity to flourish in a meaningful relationship with members of the same sex.

Situational homosexuality is a lot like situational left-handedness. I think people realize that when a batter in a ball-game "switch hits" that doesn't automatically turn him into someone who is either left-handed or perfectly ambidextrous. If we say that he has *some* degree of ambidextrousness...well who doesn't have *some* degree of abidexrousness?

What is the point of all of this? If we want to call pedophiles like Jake Goldenflame *some* kind of bisexual because he molested little boys and girls and if we are going to throw all of the Aaron McKinneys into the "gay or bi box" -- anyone who has for some short period in their life experimented with homosexual behavior even if they are otherwise well adjusted heterosexuals who always had a full attraction to members of the opposite, not the same, sex -- then the "gay or bi" box is a Hell of a lot larger than 3-4% of the population and is probably a lot larger than 20% of the population as well. Therefore, the stat that uses the 3-4% as a baseline and compares it to child molestations that are same-sex in nature is a garbage statistic. Cramer should know better.

Monday, May 16, 2005

Lilla on Church & State, and more on John Adams and Religion:

A great article by Mark Lilla on Church State issues. He cautions those of us who believe in secular government not to get too hung up on David Barton types (he actually names Barton). Refuting him may be easy and satisfying, but there is a larger reality out there.

At the low end there is the schlock history written by religious propagandists like David Barton, the author of the bizarre pastiche ''The Myth of Separation,'' who use selective quotations out of context to suggest that the framers were inspired believers who thought they were founding a Christian nation. But there is also serious work being done by historians like Mark Noll and George Marsden to counter the tendency in American historiography to rummage through the past for anticipations of our secular, egalitarian, multicultural present. This is a useful corrective and reminds us that the role of religion in American life was large and the separation of church and state less clear than today.

Lilla gets to the heart of how the Founders really viewed religion (and takes a fair middle grounded approach).

What distinguished thinkers like David Hume and John Adams from their French [Enlightenment] counterparts was not their ultimate aims; it was their understanding of religious psychology. The British and Americans made two wagers. The first was that religious sects, if they were guaranteed liberty, would grow attached to liberal democracy and obey its norms. The second was that entering the public square would liberalize them doctrinally, that they would become less credulous and dogmatic, more sober and rational.

That's absolutely true. In many ways the tenets of liberal democracy took a great deal of power away from Churches [at least the dominant ones] and worked to quell the religious passions of the populace quite a bit. But on the other hand, the founders thought that religion was good for morality and a religious citizenry was superior to an irreligious one. The Founders attempted to thread the needed between our Constitutional order (the theory of modern politics and liberal democracy) which was derived not from the Bible but rather reason and philosophy, and the Christian religion itself by arguing that Christianity, properly understood, is wholly compatible with liberal democracy.

Therefore, the Calvinistic-Puritian understanding of Faith & Government which believed in basing a public order on "Revelation" -- and these governments typically would force their citizens to attend Church and criminally penalize, even go so far as to execute heretics and blasphemers -- was not "Christianity, properly understood," but rather an "erroneous" doctrine of how religion and government ought to exist together.

And while it's true that the liberal Protestantism of the Founding era -- highly influenced by deism and unitarianism, and which rejected many traditional Christian orthodoxies -- was compatible with political liberalism, it's also true that some very fundamentalistic, evangelical strains of Christianity were compatible with political liberalism as well. Roger Williams and the Baptists were as fundamentalist as it gets. They believed in keeping religion so absolutely pure from corrupt worldly influences that religion and civil government be kept as distinct from one another as possible. The notion of any civil government -- a worldly institution comprised of fallen men -- as a "Christian" entity was, to Williams, downright blasphemous.

Jefferson and Madison, of course, believed in the more theologically liberal deistic-unitarian "natural" religion, but they seemed to be keenly aware of this evangelical strain of dissident Protestants who desired to keep their religion pure from worldly influences and in fact, often played up on those sentiments, when making their arguments (Madison especially talked about keeping religion & government separate as to preserve the "purity" of both).

Anyway let me dig deeper and give an example how Adams tried to build a bridge between philosophy and civic religion arguing that Christianity, properly understood was compatible with liberalism, and in the mean time, demonstrate how David Barton (when he manages to cite our Founders accurately), misrepresents when he plucks our founders quotes from context. Context is everything.

For instance, one of David Barton's "proof quotes" about our "Christian Nation" is from John Adams: "The general principles, on which the Fathers achieved independence, were...the general Principles of Christianity."

That this quote is from an 1813 letter to Thomas Jefferson (I'm pretty sure the quote is accurate, although I don't have the letter in front of me) is ironic. If you've read their correspondence, especially from some of the other letters that particular year (1813) you would appreciate the irony in plucking that quote from context in trying to prove Adams was arguing that America was founded on "Biblical Christianity." Those letters read in their entirety reveal that Adams and Jefferson pretty much saw eye to eye on matters of religion. And although Jefferson was more harsh in his attacks, both men strongly disapproved of Calvinistic Trinitarian Christianity. (As Gary North puts it -- not the way I would put it -- on page 140 in his book critiquing the Founders and Religion, "Their letters reveal that they were almost totally agreed on religion. They hated Christianity, especially Calvinism.")

It would be wise to turn to another letter from Adams to Jefferson in 1813. In it Adams clearly denies the Trinity as "unreasonable" and states, "The Calvinist, the Athanasian divines ... will say I am no Christian. I say they are no Christians, and there the account is balanced."

In terms of how Adams came to understand what was "True," especially those "Truths" upon which political orders would be built, Adams's writings reveal that, as a true Enlightenment liberal, he turned to Reason over Revelation. As he wrote in "A Defence of the Constitutions of Government of the United States of America,"

The United States of America have exhibited, perhaps, the first example of governments erected on the simple principles of nature....It will never be pretended that any persons employed in that service had interviews with the gods, or were in any degree under the influence of Heaven, more than those at work upon ships or houses, or laboring in merchandise or agriculture; it will forever be acknowledged that these governments were contrived merely by the use of reason and the senses.

....

Thirteen governments [of the original states] thus founded on the natural authority of the people alone, without a pretence of miracle or mystery, and which are destined to spread over the northern part of that whole quarter of the globe, are a great point gained in favor of the rights of mankind.

Adams did indeed have some positive things to say about "Christianity"; but, as we have seen it was Christianity as Adams wanted it to be, certainly not the Christianity of D. James Kennedy, David Barton, et al., which arguably Adams reviled. As Lilla notes, Adams believed in Christianity as sort of a "civic religion," but it was a watered down version of Christianity that would complement Enlightenment liberalism.

In terms of Adams own "Christian" beliefs, he was a capital U Unitarian who 1) denied the Trinity, 2) didn't believe in Eternal Damnation, 3) didn't believe that Revelation was inerrant and, like Jefferson, flatly rejected much of it as incompatible with "Reason," and 4) certainly didn't accept Jesus as his personal savior or claim to be born-again. We must therefore keep in mind when Adams discusses Christianity in a positive sense, that this is Adams's version of "Christianity," properly understood. This is not the understanding of today's fundies who claim that America was founded as a "Christian Nation."

Sunday, May 15, 2005

Just as I had finished that post, that day, news came down about a Federal District Court striking down Nebraska's constitutional amendment forbidding the state from recognizing same-sex marriages, civil unions, domestic partnerships, and "other similar same-sex relationships."

Does this federal court decision say that the Constitution demands recognition of gay marriage? Eugene Volokh thinks so ("[I]f the judge is right, then states would indeed be required to recognize same-sex marriage).

As I wrote in my last post, the Fourteenth Amendment, properly understood and logically extending its original principles to gay couples, may indeed demand that the nation recognize gay marriage (or not). But if it does, there is a proper time for it to be done. The principles of liberty and equality -- what American in principle is all about -- are objective and timeless. But if the French Revolution taught us anything it's that we can't attempt to try to implement it all at once. The American experiment with liberalism was in founding the nation on liberty and equality rights, antecedent to majoritarian rule -- but at the same time, not implementing it all at once, going at a slower pace than say, the French did. Rather, major compromises with ideals were allowed, and the changes -- the expansion of liberty and equality -- came gradually as the nation was ready for it. And even then we couldn't avoid a horribly bloody civil war to fully guarantee rights for blacks.

The point is, when only one state recognizes gay marriage (by court decision -- no state yet by democratically elected legislators), the nation isn't ready for a national constitutional guarantee of gay marriage, just as back in 1870 the nation wasn't ready for national guarantee of the right to marry interracially.

Thursday, May 12, 2005

Brown, Loving, Lawrence & Originalism:

Edward Whelan has an article defending Brown v. Board of Education on originalist grounds. The dilemma of "Original Intent" originalists is that often their theory yields results in which they don't wish to defend. For instance, a pretty strong case can be made that the drafters of the 14th Amendment did not intend to do away with segregated schools. After all, as Margaret Talbot put it, the "same Congress that passed the Fourteenth Amendment segregated Washington schools." (Technically, Whelan notes, "the 37th Congress created segregated public schools for black children in D.C. in 1862, but it was a later, different Congress -- the 39th -- that in 1866 proposed the Fourteenth Amendment, which was ratified in 1868.")

Whelan cites Michael McConnell's work (which I greatly respect) making the originalist case for Brown (his 1995 Virginia Law Review article "Originalism and the Desegregation Decisions"). I'll concede that one could make a case for or against Brown on "Original Intent" grounds (although I'm pretty skeptical that the ratifiers of the 14th Amendment believed that they were outlawing segregration, which would be required in order to vindicate Brown on Original Intent grounds). But there is no way that one can make the same case for Loving v. Virginia.

Not only were the framers of the 14th Amendment not aware that they were outlawing state bans on interracial marriage, but the Amendment was ratified upon the specific reliance by framers to the states that they were NOT outlawing such bans. For instance, the Illinois Republican Senator Lyman Trumbull -- the drafter and manager of the 14th Amendment -- stated: "If the negro is denied the right to marry a white person, [and] the white person is equally denied the right to marry the negro[,] I see no discrimination against either." (See this article). And this is the exact same argument that Virginia's lawyer made in Loving.

I wish there were a transcript of this speech that Hadley Arkes gives, dealing with this very issue. Now Arkes is a social conservative and lays all of these facts down and then actually defends Loving (the outcome, not the reasoning in the case). What does Arkes argue? Basically, even if on the specific question of interracial marriage Loving wasn't consistent with original intent, it was certainly consistent with the more overriding general principle of that Amendment, which was to guarantee equality between the races. In fact, the result in Loving is more consistent with what that Amendment sought to accomplish -- racial equality -- than Trumbull's/the framers' specific point of view on miscegenation. For instance, as Whelan notes:

As early as 1880 -- a mere twelve years after ratification of the Fourteenth Amendment -- the Supreme Court in Strauder v. West Virginia read the Fourteenth Amendment as "declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color."

Now that general principle, as applied to the specific issue of interracial marriage bans certainly would justify striking down such bans. Arkes concedes that we posit general principles one day (for instance, racial equality) -- may apply them inconsistently when they are first initiated (for instance, anti-miscegenation laws aren't discriminatory) -- and then years later realize that staying true to the original general overriding principle may require coming down in a way not anticipated by the principle's initiators in specific circumstances (i.e., even though the Framers thought that the 14th Amendment preserved the legality of interracial marriage bans, staying true to the general principle of racial equality requires striking down such bans).

Arkes has a great quote about this at exactly 45 minutes into the lecture.

"None of us can realistically claim to know all of the implications that spring from our own principles...the life of moral judgment is the life in which we are constantly discovering implications of our principles that have previously gone unforeseen. If Trumbull and his colleagues had been clear about their own principles, they might have recognized that the same principles that enjoined us not to draw adverse moral inferences about people on the basis of race [lead us to conclude that miscegenation bans impermissibly discriminate on the basis of race]."

In other words, make that logical leap consistent with original principles.

I fully agree with Arkes. But the problem for such social conservatives is that this reasoning isn't limited to Race and Loving. It has applications in many, many other constitutional areas and can be used to justify Lawrence v. Texas and one day may be used to justify gay marriage.

The outcome of that analysis depends almost entirely, however, on how specifically you define the right being asserted. The more specifically you define the liberty at issue -- for example, a "constitutional right of homosexuals to engage in acts of sodomy" -- the more difficult a burden this is to meet and the more easily the rights claim can be ridiculed. Although "liberty" as a general matter is obviously deeply rooted in our history and traditions, the specific liberty to use contraceptives is not. Nor are many other liberties, especially if unknown at the founding. Even liberties that existed at the founding, like the liberty of self-medication, have not to date been deemed "fundamental" by the Court.

Exactly. Let's substitute: The outcome of that analysis depends almost entirely, however, on how specifically you define the right being asserted. The more specifically you define the equality right at issue -- for example, a "constitutional right to marry a person of a different race" -- the more difficult a burden this is to meet and the more easily the rights claim can be ridiculed. Although "racial equality" as a general matter is obviously deeply rooted in the history and original intent of the 14th Amendment, the specific right to marry a person of a different race is not.

In this earlier post, I argued after Barnett that the Declaration of Independence and the 9th and 14th Amendments unquestionably guarantee some general substantive norm of liberty. That's the basis for the originalist grounds for Lawrence. The Original Intent retort is that those who believed in a substantive "right" to liberty couldn't possibly have believed in a specific right to commit sodomy. The reply to that would be the general principle of a substantive norm of liberty -- a presumption of liberty, as Randy Barnett puts it -- logically points in that direction.

Replying that a specific right to "sodomy" isn't found in the text of the Constitution isn't sufficient, because neither is a specific right to "interracial marriage" found in the text. Simply invoking the principle of "racial equality," which was unquestionably the general intent of the 14th Amendment won't do it either, because we can just as easily invoke the principle of "liberty" which was also unquestionably part of the general intent of the drafters of the Declaration, the Bill of Rights, and the 14th Amendment.

One of the final parallels between Loving and Lawrence was the practical time in which both cases were decided. Clearly in 1868 and significantly thereafter, the nation wasn't ready for a national striking down of miscegenation bans. As the Nation article notes, quoting Harvard Law Professor, Randall Kennedy's book on the subject:

"After Ohio repealed its antimiscegenation laws in 1887, no other state followed its lead until Oregon finally did so in 1951--sixty-four years later. In the sixteen years after that, however, more than a dozen states repealed their statutes: Montana (1953), North Dakota (1955), Colorado and South Dakota (1957), California, Nevada, and Idaho (1959), Arizona (1962), Utah and Nebraska (1963), Indiana and Wyoming (1965), and Maryland (1967)." In 1940, thirty-one of the forty-eight states banned interracial marriage. As recently as 1960, Sammy Davis Jr. postponed his wedding to the Swedish actress May Britt until after the election, in order not to hurt the Democrats--and was rewarded with exclusion from John F. Kennedy's inaugural festivities.

But by 1967, when the Supreme Court struck down bans on interracial marriage in Loving v. Virginia, only sixteen states still had such laws.

Similarly, sodomy laws were once as widespread as anti-miscegenation laws. But when Lawrence v. Texas was decided, only 13 states had them left. This is important because, for instance, after claiming that Brown was consistent with Original Intent, Whelan calls the notion that the 14th Amendment guarantees a right to same-sex marriage "absurd." One wonders whether Whelan would defend Loving on originalist grounds, because, using the same process described above, of logical leaps consistent with general principles of liberty and equality (which were certainly at the heart of the 14th Amendment), the reasoning that gave us interracial marriage could indeed one day give us same-sex marriage, when the time is right (or when the time is not right). And Professor Kennedy agrees:

"It is my own belief that the struggle to secure the right to marry regardless of the genders of the parties involved will be won in the not so distant future," in part as a result of "previous struggles over race relations."

I think this is consistent with what Professor Arkes stated in justifying Loving:

None of us can realistically claim to know all of the implications that spring from our own principles...the life of moral judgment is the life in which we are constantly discovering implications of our principles that have previously gone unforeseen.

I know of course a retort that many, including Arkes would put forth is, "if Loving leads to gay marriage, then gay marriage must also logically lead us to...." fill in the blank. And indeed, the expansion of liberty and equality probably won't end with homosexuals. However, Loving & Lawrence both were decided at very prudent times: after a strong majority of the states had already settled the issue. So too would be the right time for the Supreme Court to guarantee same-sex marriage if they ever do settle the issue.